R v.Lambert House of Lords and RIP reverse-burden-of-proof

[Caspar Bowden]

There is a reference to RIP reverse-burden-of-proof in Lord Hope's
opinion (para.93) in the following House of Lords appeal (5th July
2001). It appears to be a major rehearsal of arguments about the
presumption of innocence in HRA.

A little disconcertingly, Lord Hope refers to the "offence of
possession" in RIP 53(2), as if possession of a key was the inherent
offence (like a controlled drug), rather than the issue of possession
arising from non-compliance with a s.49 order.

Although the opinions are interesting, they don't seem to clarify much
what will suffice to "raise the issue" of no-PANTS (Possession after
Notice Time of Serving) in 53(2). Asserting an unusually bad memory ?
Through statements or testimony from the witness box ? Asserting a
normal memory, but forgetfulness in this instance ?

The essential point seems to me that it is not arguable that use of
encryption in itself is comparable to possession of drugs, so arguments
about "balancing the interests of the individual in achieving justice
against the needs of society to protect against abuse of drugs", will be
a non-starter in a RIP case. The construction of RIP doesn't allow any
consideration of a presumed "underlying" substantive offence in any
case, and if there *was* sufficient evidence of a substantive offence
then a person should be tried and convicted on that charge. It's totally
irrelevant to the issue of PANTS.

--
Caspar Bowden               Tel: +44(0)20 7354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at:    www.fipr.org/rip#media 
 
Regina v. Lambert (On Appeal From The Court of Appeal (Criminal
Division)) 
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/j
d010705/regina-4.htm
"93. Section 53(3) of the Regulation of Investigatory Powers Act 2000 is
to the same effect. It provides a defence to the offence of possession
described in section 53(2). It places the onus of proving the contrary
beyond a reasonable doubt on the prosecutor if sufficient evidence of
that fact is adduced to raise an issue with respect to it. It is not
unreasonable to think that, if Parliament were now to have an
opportunity of reconsidering the words used in section 28(2) and (3) of
the 1971 Act, it would be content to qualify them in precisely the same
way"